Change to Birthright Citizenship Would Affect Visa Holders, Too

2025/01/23 Leave a comment

One of the better overviews, covering the politics, legal aspects and operational practicalities (some familiar to Canadian issues under the Conservative government in 2012):

President Trump’s executive order on birthright citizenship declares that babies born to many temporary residents of the United States — not just those in the country illegally — must be denied automatic citizenship, a dramatic rejection of rights that have been part of the Constitution for more than 150 years.

If the courts do not block the order, babies born to women living legally, but temporarily, in the United States — such as people studying on a student visa or workers hired by high-tech companies — will not automatically be recognized by the federal government as U.S. citizens if the father is also not a permanent resident.

Aides to Mr. Trump had told reporters on Monday morning that the order would apply to “children of illegal aliens born in the United States.” In fact, the language in the order Mr. Trump signed, titled “Protecting the Meaning and Value of American Citizenship,” goes much further.

“It’s a shocking attack on people in this country who are here lawfully, played by the rules and are benefiting the country,” said David Leopold, the chair of the immigration practice at the law firm UB Greensfelder. “We’re talking about people who are doing cutting-edge research in the United States, researchers, people who are here to help us.”

The order was part of a barrage of actions that Mr. Trump authorized on Monday to carry out his vision of a country with far less immigration. Despite claims he repeated on Monday that “I’m fine with legal immigration; I like it,” the president’s new orders would also severely curtail the options of those looking to enter the United States legally.

Many of the president’s closest advisers, including Stephen Miller, his deputy chief of staff and the architect of his immigration policy, have urged a tough line on birthright citizenship. During Mr. Trump’s first term, Mr. Miller and other aides pushed to make sure that immigrants could no longer establish what they call an “anchor” in the United States by having a baby who automatically becomes an American citizen.

In addition to targeting birthright citizenship, Mr. Trump on Monday barred asylum for immigrants seeking to cross the southern border, imposed an indefinite suspension of the legal refugee system, terminated several legal pathways for immigrants put in place by the Biden administration and declared the existence of an “invasion” from immigrants aimed at giving the federal government broad powers to stop all kinds of people from entering.

The executive order regarding birthright citizenship says that right will be denied for babies born to parents who are not citizens or permanent residents with green cards, including women who are “visiting on a student, work or tourist visa” if the father is not a citizen or a legal permanent resident. In that case, the order says, “no department or agency of the United States government shall issue documents recognizing United States citizenship.”

There are serious questions about how Mr. Trump’s administration would impose such a dramatic change in policy.

Currently, the citizenship of babies born in the United States is documented in a two-step process.

First, the state or territorial government will issue a birth certificate confirming where and when the birth took place. The birth certificate does not include any information about the immigration status of the baby’s parents.

Second, when that baby (or the parents, on the child’s behalf) applies for a passport, the birth certificate showing that the baby was born on U.S. soil is enough to prove citizenship. No other documentation is required.

Mr. Trump’s executive order indicates that in 30 days, all federal agencies will be required to confirm the immigration status of the parents before issuing documents like a passport.

Left unclear, however, is how that would be put into practice.

One option would be for state agencies to check the immigration status of parents and include that information on birth certificates. Then, when passports are requested, the federal government would be able to determine which babies qualify for automatic citizenship.

It could take years, however, for states to put in place a system that checks the immigration status of all parents — assuming they are willing to do so. The federal government could establish guidelines for the required information, but it would most likely be up to the states to decide how and whether to gather that data from parents when they issue a birth certificate.

If the states do not overhaul the birth certificate process, the federal government could seek to enforce Mr. Trump’s order by requiring people applying for passports to present both a birth certificate and proof of their parents’ citizenship status when they were born.

That could become extremely cumbersome, legal experts said, particularly for people with complicated family dynamics or missing legal documents.

Several White House officials did not respond to questions seeking clarification about how the order might be carried out.

Legal scholars and immigration advocates said on Tuesday that they were stunned by the breadth of the order.

Advocates are hoping that judges will step in and put it on hold before it is set to take effect on Feb. 20. The American Civil Liberties Union filed a lawsuit in federal court in New Hampshire on Monday night challenging the order, just hours after the president signed it.

And on Tuesday, attorneys general from 22 states and two cities sued Mr. Trump to block the executive order. Rulings by either judge could temporarily suspend the order, prompting what could be a monthslong legal battle that could end up before the Supreme Court.

“It’s very clear that they mean to double down on their nativistic anti-immigrant agenda, and that denying citizenship to children born in the U.S. has got to be a core part of their plan,” said Anthony Romero, the executive director of the A.C.L.U. “If we were to repeal birthright citizenship, it would create a legal vehicle for intergenerational stigma and discrimination that would undo the very core of this grand American experiment.”

Birthright citizenship in the United States was put in place after the Civil War to allow Black people to be citizens. The 14th Amendment says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Before the amendment was ratified in 1868, even free Black men and women could not become citizens.

Mr. Trump argues that his administration is within its rights to interpret what the writers of the amendment meant.

“The 14th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” his executive order said.

Many lawyers say that is flatly wrong. In their legal brief, the A.C.L.U.’s lawyers argued that the meaning of the 14th Amendment had been settled law for more than 125 years. They cited an 1898 case called United States v. Wong Kim Ark, in which they said the Supreme Court “emphatically rejected the last effort to undercut birthright citizenship.”

“The executive order is certainly unconstitutional,” said Cecillia Wang, the A.C.L.U.’s national legal director. “It’s fair to say that if the court were to uphold Trump’s birthright citizenship executive order, it would lose all legitimacy in the eyes of the people and in the history books.”…

Source: Change to Birthright Citizenship Would Affect Visa Holders, Too

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Trump Executive Orders of Interest

2025/01/21 Leave a comment

Many of these will be subject to litigation. Similarly to the Harper government’s titles of legislation, the titles have political rather than more neutral language. A selection of the one’s I will be watching in particular and expect considerable commentary and likely legal challenges:

Citizenship

PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP [ACLU and others already submitted a legal challenge, and it appears to be framed more broadly than just women not in the USA legally as it includes temporary residents such as international students and workers. Indian media has particularly flagged impact on H1-B and other visa holders.]

Section 1.  Purpose.  The privilege of United States citizenship is a priceless and profound gift.  The Fourteenth Amendment states:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race. 

But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.  The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”  Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.  

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

Sec. 2.  Policy.  (a)  It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

Immigration

PROTECTING THE UNITED STATES FROM FOREIGN TERRORISTS AND OTHER NATIONAL SECURITY AND PUBLIC SAFETY THREATS

Section 1.  Policy and Purpose.  (a)  It is the policy of the United States to protect its citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.

(b)  To protect Americans, the United States must be vigilant during the visa-issuance process to ensure that those aliens approved for admission into the United States do not intend to harm Americans or our national interests.  More importantly, the United States must identify them before their admission or entry into the United States.  And the United States must ensure that admitted aliens and aliens otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security.

PROTECTING THE AMERICAN PEOPLE AGAINST INVASION

Section 1.  Purpose.  Over the last 4 years, the prior administration invited, administered, and oversaw an unprecedented flood of illegal immigration into the United States.  Millions of illegal aliens crossed our borders or were permitted to fly directly into the United States on commercial flights and allowed to settle in American communities, in violation of longstanding Federal laws.

Many of these aliens unlawfully within the United States present significant threats to national security and public safety, committing vile and heinous acts against innocent Americans.  Others are engaged in hostile activities, including espionage, economic espionage, and preparations for terror-related activities.  Many have abused the generosity of the American people, and their presence in the United States has cost taxpayers billions of dollars at the Federal, State, and local levels.

Enforcing our Nation’s immigration laws is critically important to the national security and public safety of the United States.  The American people deserve a Federal Government that puts their interests first and a Government that understands its sacred obligation to prioritize the safety, security, and financial and economic well-being of Americans.

This order ensures that the Federal Government protects the American people by faithfully executing the immigration laws of the United States.

SECURING OUR BORDERS

Section 1.  Purpose.  Over the last 4 years, the United States has endured a large-scale invasion at an unprecedented level.  Millions of illegal aliens from nations and regions all around the world successfully entered the United States where they are now residing, including potential terrorists, foreign spies, members of cartels, gangs, and violent transnational criminal organizations, and other hostile actors with malicious intent.

Deadly narcotics and other illicit materials have flowed across the border while agents and officers spend their limited resources processing illegal aliens for release into the United States.  These catch-and-release policies undermine the rule of law and our sovereignty, create substantial risks to public safety and security, and divert critical resources away from stopping the entry of contraband and fugitives into the United States.  

We have limited information on the precise whereabouts of a great number of these illegal aliens who have entered the United States over the last 4 years.

This cannot stand.  A nation without borders is not a nation, and the Federal Government must act with urgency and strength to end the threats posed by an unsecured border.

REALIGNING THE UNITED STATES REFUGEE ADMISSIONS PROGRAM

Section 1.  Purpose.  Over the last 4 years, the United States has been inundated with record levels of migration, including through the U.S. Refugee Admissions Program (USRAP).  Cities and small towns alike, from Charleroi, Pennsylvania, and Springfield, Ohio, to Whitewater, Wisconsin, have seen significant influxes of migrants.  Even major urban centers such as New York City, Chicago, and Denver have sought Federal aid to manage the burden of new arrivals.  Some jurisdictions, like New York and Massachusetts, have even recently declared states of emergency because of increased migration.

The United States lacks the ability to absorb large numbers of migrants, and in particular, refugees, into its communities in a manner that does not compromise the availability of resources for Americans, that protects their safety and security, and that ensures the appropriate assimilation of refugees.  This order suspends the USRAP until such time as the further entry into the United States of refugees aligns with the interests of the United States.

CLARIFYING THE MILITARY’S ROLE IN PROTECTING THE TERRITORIAL INTEGRITY OF THE UNITED STATES

Section 1.  Purpose.  (a)  As Chief Executive and as Commander in Chief of the Armed Forces of the United States, I have no more solemn responsibility than protecting the sovereignty and territorial integrity of the United States along our national borders.  The protection of a nation’s territorial integrity and national boundaries is paramount for its security.

(b)  The Armed Forces of the United States have played a long and well-established role in securing our borders against threats of invasion, against unlawful forays by foreign nationals into the United States, and against other transnational criminal activities that violate our laws and threaten the peace, harmony, and tranquility of the Nation.  These threats have taken a variety of forms over our Nation’s history, but the Armed Forces have consistently played an integral role in protecting the sovereignty of the United States.

(c)  Threats against our Nation’s sovereignty continue today, and it is essential that the Armed Forces staunchly continue to participate in the defense of our territorial integrity and sovereignty.  A National Emergency currently exists along the southern border of the United States.  Unchecked unlawful mass migration and the unimpeded flow of opiates across our borders continue to endanger the safety and security of the American people and encourage further lawlessness.  Accordingly, through this order, I am acting in accordance with my solemn duty to protect and defend the sovereignty and territorial integrity of the United States along our national borders.

DEI

ENDING RADICAL AND WASTEFUL GOVERNMENT DEI PROGRAMS AND PREFERENCING

Section 1.  Purpose and Policy.  The Biden Administration forced illegal and immoral discrimination programs, going by the name “diversity, equity, and inclusion” (DEI), into virtually all aspects of the Federal Government, in areas ranging from airline safety to the military.  This was a concerted effort stemming from President Biden’s first day in office, when he issued Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”

Pursuant to Executive Order 13985 and follow-on orders, nearly every Federal agency and entity submitted “Equity Action Plans” to detail the ways that they have furthered DEIs infiltration of the Federal Government.  The public release of these plans demonstrated immense public waste and shameful discrimination.  That ends today.  Americans deserve a government committed to serving every person with equal dignity and respect, and to expending precious taxpayer resources only on making America great.

DEFENDING WOMEN FROM GENDER IDEOLOGY EXTREMISM AND RESTORING BIOLOGICAL TRUTH TO THE FEDERAL GOVERNMENT

Section 1.  Purpose.  Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.  This is wrong.  Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.  The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.  Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.

This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.  Invalidating the true and biological category of “woman” improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept.

Accordingly, my Administration will defend women’s rights and protect freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male. 

Government

RESTORING ACCOUNTABILITY FOR CAREER SENIOR EXECUTIVES

Career Senior Executive Service (SES) officials are charged to “ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality,” as required by section 3131 of title 5, United States Code.  SES officials have enormous influence over the functioning of the Federal Government, and thus the well-being of hundreds of millions of Americans.  

As the Constitution makes clear, and as the Supreme Court of the United States has reaffirmed, “the ‘executive Power’ — all of it — is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’”  Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197, 203 (2020).  “Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance.”  Id. at 203–04.  

The President’s power to remove subordinates is a core part of the Executive power vested by Article II of the Constitution and is necessary for the President to perform his duty to “take Care that the Laws be faithfully executed.”  Because SES officials wield significant governmental authority, they must serve at the pleasure of the President. 

Only that chain of responsibility ensures that SES officials are properly accountable to the President and the American people.  If career SES officials fail to faithfully fulfill their duties to advance the needs, policies, and goals of the United States, the President must be able to rectify the situation and ensure that the entire Executive Branch faithfully executes the law.  For instance, SES officials who engage in unauthorized disclosure of Executive Branch deliberations, violate the constitutional rights of Americans, refuse to implement policy priorities, or perform their duties inefficiently or negligently should be held accountable. 

RESTORING ACCOUNTABILITY TO POLICY-INFLUENCING
POSITIONS WITHIN THE FEDERAL WORKFORCE

Section 1.  Purpose.  Article II of the United States Constitution vests the President with the sole and exclusive authority over the executive branch, including the authority to manage the Federal workforce to ensure effective execution of Federal law.  A critical aspect of this executive function is the responsibility to maintain professionalism and accountability within the civil service.  This accountability is sorely lacking today.  Only 41 percent of civil service supervisors are confident that they can remove an employee who engaged in insubordination or serious misconduct.  Even fewer supervisors –- 26 percent — are confident that they can remove an employee for poor performance.

Accountability is essential for all Federal employees, but it is especially important for those who are in policy-influencing positions.  These personnel are entrusted to shape and implement actions that have a significant impact on all Americans.  Any power they have is delegated by the President, and they must be accountable to the President, who is the only member of the executive branch, other than the Vice President, elected and directly accountable to the American people.  In recent years, however, there have been numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership.  Principles of good administration, therefore, necessitate action to restore accountability to the career civil service, beginning with positions of a confidential, policy-determining, policy-making, or policy-advocating character.

RESTORING FREEDOM OF SPEECH AND ENDING FEDERAL CENSORSHIP

Section 1.  Purpose.  The First Amendment to the United States Constitution, an amendment essential to the success of our Republic, enshrines the right of the American people to speak freely in the public square without Government interference.  Over the last 4 years, the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.  Under the guise of combatting “misinformation,” “disinformation,” and “malinformation,” the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate.  Government censorship of speech is intolerable in a free society.

Source: https://www.whitehouse.gov/news/

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ACLU Sues ICE Over Its Deliberately-Broken Immigrant ‘Risk Assessment’ Software

2020/03/07 Leave a comment

Good for the ACLU for launching a lawsuit and the research and study behind it:

from the can’t-really-call-it-an-‘option’-if-there-are-no-alternatives dept

A couple of years ago, a Reuters investigation uncovered another revamp of immigration policies under President Trump. ICE has a Risk Classification Assessment Tool that decides whether or not arrested immigrants can be released on bail or their own recognizance. The algorithm had apparently undergone a radical transformation under the new administration, drastically decreasing the number of detainees who could be granted release. The software now recommends detention in almost every case, no matter what mitigating factors are fed to the assessment tool.

ICE is now being sued for running software that declares nearly 100% of detained immigrants too risky to be released pending hearings. The ACLU’s lawsuit [PDF] opens with some disturbing stats that show how ICE has rigged the system to keep as many people detained as possible.

According to data obtained by the New York Civil Liberties Union under the Freedom of Information Act, from 2013 to June 2017, approximately 47% of those deemed to be low risk by the government were granted release. From June 2017 to September 2019, that figure plummeted to 3%. This dramatic drop in the release rate comes at a time when exponentially more people are being arrested in the New York City area and immigration officials have expanded arrests of those not convicted of criminal offenses. The federal government’s sweeping detention dragnet means that people who pose no flight or safety risk are being jailed as a matter of course—in an unlawful trend that is getting worse.

Despite there being plenty of evidence that immigrants commit fewer criminal acts than natural-born citizens, the administration adopted a “No-Release Policy.” That led directly to ICE tinkering with its software — one that was supposed to assess risk factors when making detention determinations. ICE may as well just skip this step in the process since it’s only going to give ICE (and the administration) the answer it wants: detention without bond. ICE agents can ask for a second opinion on detention from a supervisor, but the documents obtained by the ACLU show supervisors depart from detention recommendations less than 1% of the time.

The negative effects of this indefinite detention are real. The lawsuit points out zero-risk detainees can see their lives destroyed before they’re allowed anything that resembles due process.

Once denied release under the new policy, people remain unnecessarily incarcerated in local jails for weeks or even months before they have a meaningful opportunity to seek release in a hearing before an Immigration Judge. While waiting for those hearings, those detained suffer under harsh conditions of confinement akin to criminal incarceration. While incarcerated, they are separated from families, friends, and communities, and they risk losing their children, their jobs, and their homes. Because of inadequate medical care and conditions in the jails, unmet medical and mental-health needs often lead to serious and at times irreversible consequences.

When they do finally get to see a judge, nearly 40% of them are released on bond. ICE treats nearly 100% of detained immigrants as dangerous. Judges — judges employed by the DOJ and appointed by the Attorney General — clearly don’t agree with the agency’s rigged assessment system.

There will always be those who say, “Well, don’t break the law.” These aren’t criminal proceedings. These are civil proceedings where the detained are tossed into criminal facilities until they’re able to see a judge. This steady stripping of options began under the Obama administration but accelerated under Trump and his no-release policy.

ICE began to alter its custody determinations process in 2015, modifying its risk-assessment tool so that it could no longer recommend individuals be given the opportunity for release on bond. In mid-2017, ICE then removed the tool’s ability to recommend release on recognizance. As a result, the assessment tool—on which ICE offices across the country rely— can only make one substantive recommendation: detention without bond.

The ACLU is hoping to have a class action lawsuit certified that would allow it to hold ICE responsible for violating rights en masse, including the Fifth Amendment’s due process clause. Since ICE is no longer pretending to be targeting the “worst of the worst,” the agency and its deliberately-broken risk assessment tool are locking up immigrants who have lived here for an average of sixteen years — people who’ve added to their communities, held down jobs, and raised families. These are the people targeted by ICE and it is ensuring that it is these people who are thrown into prisons and jails until their hearings, tearing apart their lives and families while denying them the rights extended to them by our Constitution.

Source: ACLU Sues ICE Over Its Deliberately-Broken Immigrant ‘Risk Assessment’ Software

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